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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals


Tenth Circuit

March 24, 2006

TENTH CIRCUIT

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES OF AMERICA,


Plaintiff-Appellee,

No. 05-6228

v.

(W.D. of Okla.)

MAURICE A. BYERS,

(D.C. No. CR-05-10-L)

Defendant-Appellant.
ORDER AND JUDGMENT

Before TACHA , Chief Judge, HARTZ , and TYMKOVICH , Circuit Judges.

**

Defendant-Appellant Maurice Byers, appeals the Western District of


Oklahomas imposition of a sentence under the Armed Career Criminal Act
(ACCA), claiming that his prior convictions should have been alleged in the
indictment and proved to a jury beyond a reasonable doubt. It is now settled that
this argument is foreclosed by the Supreme Courts decision in

Almendarez-

This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
*

After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
**

Torres v. United States , 523 U.S. 224 (1998). Accordingly, we AFFIRM the
sentence imposed by the district court.
I. Discussion
Pursuant to an indictment, Byers was charged with being a felon in
possession of a firearm in violation of 18 U.S.C. 922(g) and being a felon in
possession of body armor in violation of 18 U.S.C. 931. The maximum
penalties for these offenses were ten and three years in prison, respectively.

After Byers pleaded guilty the district court imposed a higher fifteen-year
sentence under the ACCA, 18 U.S.C. 924(e), finding that Byers had three or
more previous violent or serious drug felony convictions.
Byers argued at sentencing and maintains before this court that the district
court acted in contravention of the Fifth and Sixth Amendments to the
Constitution when it imposed a sentence in excess of the maximum sentence
available for the crime with which he was charged and to which he pleaded guilty.
In doing so, Byers acknowledges that the Supreme Court has ruled that prior
criminal history, including convictions, that increases the statutory penalty does
not need to be pleaded by the Government in its indictment, nor proven to a jury.
Almendarez-Torres , 523 U.S. at 247. Byers also concedes that we have
Byers does not appeal the sentence imposed for his possession of body
armor. As such, we refer only to the sentence imposed for his firearm conviction.
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consistently held, on the basis of

Almendarez-Torres , that prior criminal

convictions which enhance a sentence are not elements of the offense which must
be proved to a jury.

United States v. Dorris , 236 F.3d 582, 587 (10th Cir. 2000);

United States v. Moore , 401 F.3d 1220, 1223 (10th Cir. 2005).
Given these concessions, there is little for us to do. It is true that at least
one justice of the Court has suggested that
reconsideration.

Almendarez-Torres is ripe for

Shepard v. United States , 125 S. Ct. 1254, 1264 (2005)

(Thomas, J., concurring). But any change in the law will have to come from the
Supreme Court, not us. Unless and until the Supreme Court chooses to revisit its
decision in Almendarez-Torres , we are bound by it.
II. Conclusion
For the foregoing reasons, we AFFIRM the district court.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge

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